Lockerbie & the Scotland Act

[This is the headline over an article by Alex Massie that appeared in the Coffee House section of The Spectator’s website on this date in 2009. It reads as follows:]

Could government ministers in London have stepped-in to prevent the release of Abdelbaset Ali al-Megrahi? A report in Scotland on Sunday yesterday says yes they could:

Scottish Secretary Jim Murphy could have overruled Scottish justice secretary Kenny MacAskill and stopped the release of Abdelbaset Ali Mohmed al-Megrahi if the case was deemed to have breached "international obligations".

Senior diplomats have insisted there was a "clear understanding" between the UK and the US that Megrahi would serve out his sentence in Scotland. The US Justice and State departments have also insisted they had been given assurances in the 1990s that Megrahi would remain imprisoned under Scottish jurisdiction.

[…]Andrew Mackinlay, a senior Labour MP, has now argued for the Scotland Act to be tightened to allow Westminster to override Scottish Government decisions if they have foreign policy implications for the whole of the UK. "Since there appears to be a provision in the Scotland Act, it should at least have been examined," he said.

[…]The key part of the Scotland Act says: "If the Secretary of State has reasonable grounds to believe that any action proposed to be taken by a member of the Scottish Executive would be incompatible with any international obligations, he may by order direct that the proposed action shall not be taken."

Consider me unpersuaded. In fact, consider me vexed by the confused logic of this piece. In the first place it’s not difficult to appreciate that an "understanding" is not necessariy the same thing as an "obligation".

Secondly, releasing Megrahi on compassionate grounds does not break the understanding the Americans believed they had been given that Megrahi would serve his time in Scotland. That’s for the very good reason that he has served all his time in Scotland. Now, had Kenny MacAskill accepted Libya’s petition to transfer Megrahi to a Tripoli jail then that would have broken the assurances given to the United States. But releasing him on compassionate grounds – if also, therefore, on license – does not.

This may seem a technical distinction but it is, I think, still an important one.

[RB: On topics other than the Lockerbie case I rarely agree with Alex Massie. But on Lockerbie he is usually sound, as he is here.]